Visa Lawyer Blog

Articles Posted in Technology Workers

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The February 2024 Visa Bulletin was recently published by the Department of State.

While the Dates for Filing Chart remains unchanged from the previous month, the Final Action Dates Chart shows some modest advancements in some of the employment-based preference categories, specifically EB-1 worldwide continues to be current, EB-2 Worldwide will advance by two weeks to November 15, 2022, EB-3 Professional and Skilled Workers, India will advance by one month to July 1, 2012, and the rest of the world will advance by one month to September 1, 2022. EB-5 India will advance by one week to December 15, 2015, while the rest of the world will remain current.

For family-sponsored categories, the Final Action Dates for F2A Worldwide, F2A China, F2A India, and F2A Philippines will advance by more than 3 months to February 8, 2020, while F2A Mexico will advance to February 1, 2020. The February Dates for Filing remain the same as the previous month.

Whether you are applying for an immigrant visa at a U.S. Consulate overseas or applying for adjustment of status to permanent residence in the United States, you won’t want to miss these new updates.

Highlights of the February 2024 Visa Bulletin

Employment-based categories

  • The February Dates for Filing remain the same as January 2024

Final Action Dates

  • EB-1 India: The EB-1 India Final Action Date will remain at September 1, 2020.
  • EB-1 China: The EB-1 China Final Action Date will remain at July 1, 2022
  • EB-1 Worldwide: All other countries will remain current.
  • EB-2 India: The EB-2 Final Action Date for India will remain at March 1, 2012
  • EB-2 China: The EB-2 China Final Action Date will remain at January 1, 2020.
  • EB-2 Worldwide: Final Action Dates for the remaining countries in EB-2 will advance by two weeks, to November 15, 2022.
  • EB-3 Professional/Skilled Workers: The EB-3 Professional/Skilled Worker Final Action for China, will remain at September 1, 2020. India will advance by one month to July 1, 2012. Final Action Dates for the remaining countries in the category will advance by one month to September 1, 2022.

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On January 5, 2024, the U.S. Citizenship and Immigration Services (USCIS) released updated policy guidance describing how the agency analyzes an employer’s ability to pay the offered wage to prospective employees with employment-based immigrant petitions requiring a job offer, filed with USCIS under the first, second, and third preference categories, also known as EB-1, EB-2, and EB-3.

Specifically, the policy guidance clarifies how an employer’s ability to pay will be demonstrated where a beneficiary of a pending Form I-140 Immigrant Petition for Alien Worker, decides to change to a new employer under the American Competitiveness in the Twenty-First Century Act of 2000 (AC-21).

As a general matter, employers must be able to demonstrate their continuing ability to pay the offered wage to employees with petitions filed under the employment first, second, and third preference categories (EB-1, EB-2, EB-3) starting from the priority date of the underlying I-140 petition, until the beneficiary receives lawful permanent resident status (a green card).

Under the updated guidance, when an employee moves to a new employer under AC-21 while the underlying I-140 petition is still pending, USCIS will determine whether the petitioner meets its ability to pay requirement by only reviewing the facts in existence at the time of filing. This means that, USCIS will only consider initial evidence submitted with the petition (and any responses to Requests for Evidence) to determine if the petitioner has established its ability to pay from the priority date to the date of filing the I-140 petition.

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Newly released data from the U.S. Citizenship and Immigration Services (USCIS) has shown that thanks to policy guidance released in January 2022, more foreign nationals working in the STEM fields are receiving O-1A visas than ever before.

In just the first year of issuing its revised guidance for example, issuance of O-1A visas soared by 30% to 4,570 and remained steady throughout fiscal year 2023.

USCIS’ clarifying policy guidance also benefitted EB-2 applicants with advanced STEM degrees seeking the National Interest Waiver petition. The number of such visas approved in 2022 increased by 55% over 2021, to 70,240 visas and remained at a high level throughout 2022.

Recent policy clarifications have helped those with advanced degrees in the STEM fields understand whether they meet the qualifying criteria of the O-1A and EB-2 National Interest Waiver petition, because USCIS has been much more transparent in listing examples of the types of evidence that will satisfy the evidentiary criteria, focusing on the highly technical nature of STEM fields and the complexity of evidence typically submitted in these fields.

One of the more interesting updates USCIS provided in its policy guidance, emphasizes that with respect to O-1A petitions, if a particular criterion does not readily apply to the applicant’s field, comparable evidence may be submitted to establish sustained acclaim or recognition, including examples of comparable evidence for those working in the STEM fields, 2 USCIS-PM M.4, Appendices Tab.

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The past year saw big victories for worldwide visa operations.

The Department of State recently provided statistics summarizing its visa processing capacity in the year 2023. The recent data shows tremendous advancement in visa processing capacity at Consular posts globally and provides a strong outlook for visa processing in the year 2024.

In the year 2023, the Department of State issued more nonimmigrant visas at U.S. Consular posts and Embassies worldwide than at any other time since 2015.

This included issuing a record of 10.4 million nonimmigrant visas globally, with more than 1 million nonimmigrant visas issued in a single month during March of 2023.

Some of the State Department’s accomplishments include:

  • The reunification of families, with the issuance of 563,000 immigrant visas (IVs) in FY 2023, with 30 of its missions issuing their largest number of immigrant visas ever.  Consular sections worldwide have reduced the overall immigrant visa interview scheduling backlog by nearly half, from nearly 532,000 in July 2021, to just over 275,500.
  • Prioritizing student and academic exchange visitor visa interviews to facilitate study at U.S. universities and colleges. Consular sections issued 830,000 student and exchange visitor visas in FY 2023, more than in any year since FY 2016.  More than 600,000 of those were for students pursuing an education in the United States, many of them from countries sending record numbers of students. Of these numbers, nearly 40,000 visas were issued to African students which set an all-time record.
  • Record numbers of visas were issued for seasonal agricultural and non-agricultural workers to facilitate the legal and orderly flow of labor. A record-breaking 442,000 visas were issued to H-2A and H-2B temporary workers in 2023, with nearly 90 percent of visas issued to workers from Mexico, El Salvador, Guatemala, and Honduras. 
  • A record number of 365,000 nonimmigrant visas were issued to airline and shipping crewmembers (C1/D) which are essential to maintaining international transportation and supply chains that support the U.S. and global economies.

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As the new year approaches, we have some unfortunate news to report for certain employment-based applicants who may wish to file their petitions with premium processing service in 2024, including those filing:

  • Form I-129 Petition for a Nonimmigrant Worker
  • Form I-140 Immigrant Petition for Alien Worker, as well as
  • Certain applicants filing Form I-765 Application for Employment Authorization and
  • I-539 Application to Extend or Change Nonimmigrant Status with USCIS.

On December 28, 2023, USCIS published a final rule in the Federal Register that will increase the filing fee for Form I-907, Request for Premium Processing Service, to adjust for inflation.

The final rule states that starting February 26, 2024, the Department of Homeland Security (DHS) will increase the premium processing fees USCIS charges for all eligible forms and categories to reflect the amount of inflation from June 2021 through June 2023 according to the Consumer Price Index for All Urban Consumers.

Please note that not all petitions are eligible to request premium processing service. Applicants may only request premium processing if USCIS has specifically designated your classification as one that is eligible for premium processing service. To determine whether premium processing is available for your benefit request please review the USCIS webpage.

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The rumors are true. For the first time in nearly two decades, the Department of State (DOS) will process domestic visa renewals for certain H-1B visa applicants without requiring them to leave the United States.

This is all part of a new pilot program starting January 29, 2024, through April 1, 2024, that will allow 20,000 qualified H-1B nonimmigrant workers the opportunity to renew their visas domestically.

The Department of State hopes the pilot program will reduce heavy backlogs at more than 200 consular sections worldwide by making available an increased number of interview appointments for other visa categories, especially first-time travelers applying for business and tourism visas who require in-person interviews.

At the same time, DOS seeks to alleviate the burden on U.S. companies that employ H-1B workers by streamlining the visa renewal process.

The Department will accept applications for the pilot program starting January 29, 2024 on its webpage.

After the initial application period which ends on April 1st the Department will expand the scope of the program.

What are the Requirements to Participate?

Participation in this pilot will be limited to applicants who(se):

  1. Are seeking to renew an H–1B visa; during the pilot phase, the Department will not process any other visa classifications;
  2. Prior H–1B visa that is being renewed was issued by Mission Canada with an issuance date from January 1, 2020, through April 1, 2023; or by Mission India with an issuance date of February 1, 2021, through September 30, 2021;
  3. Are not subject to a nonimmigrant visa issuance fee (Note: this is commonly referred to as a “reciprocity fee”);
  4. Are eligible for a waiver of the in-person interview requirement;
  5. Have submitted ten fingerprints to the Department in connection with a previous visa application;
  6. Prior visa does not include a “clearance received” annotation;
  7. Do not have a visa ineligibility that would require a waiver prior to visa issuance;
  8. Have an approved and unexpired H–1B petition;
  9. Were most recently admitted to the United States in H–1B status;
  10. Are currently maintaining H–1B status in the United States;
  11. Period of authorized admission in H–1B status has not expired; and
  12. Intend to reenter the United States in H–1B status after a temporary period abroad.

Applicants that fall outside of this scope are not eligible to apply for a visa domestically.

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The news we have all been waiting for is finally here. Today, July 31, 2023, the U.S. Citizenship, and Immigration Services (USCIS) announced that they have conducted a second lottery to select from previously submitted electronic registrations to reach the FY 2024 numerical cap.

At this time, USCIS has notified all prospective petitioners with selected registrations from this round of selection (the second lottery) that they are eligible to file an H-1B cap-subject petition for the beneficiary named in the applicable selected registration.

Only petitioners with selected registrations are eligible to file H-1B cap-subject petitions for FY 2024, and only for the beneficiary named in the applicable selected registration notice.

Please see the information below for a reminder about what you can expect now that the second lottery has been completed.

How will I know if I was selected in the second lottery?

Petitioners with selected registrations will have their myUSCIS online accounts updated to include a selection notice, which includes details of when and where to file. If you submitted your electronic registration with the assistance of an attorney, you must contact your legal representative/case manager to determine whether you were selected in the second randomized lottery.

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This Friday afternoon, we share with you some interesting new insights revealed by the U.S. Citizenship and Immigration Services regarding the recent H-1B electronic registration period for fiscal year 2024.

USCIS has disclosed that this H-1B season, it received 758,994 eligible registrations for FY 2024, breaking its previous record of 474,421 eligible registrations just the previous year.

This represents a 60% increase in eligible registrations, with 284,573 more registrants in comparison to last year’s H-1B season.

In terms of actual selections, USCIS selected a total of 110,791 registrations to meet the annual H-1B numerical cap of 85,000 visas this H-1B season. When crunching the numbers, registrants had about a 14.6% chance of being selected, when compared to last year when the chance of selection sat at 26.9%.

This H-1B season, USCIS saw a dramatic increase in the number of registrations submitted, in comparison to prior years. Across the board, there was also an increase in the number of registrations submitted on behalf of beneficiaries with multiple registrations, and the number of registrations submitted on behalf of unique beneficiaries with only one registration. USCIS saw upward trends in the FY 2022 and FY 2023 H-1B registration periods as well.

From looking at the chart below for H-1B fiscal years 2021-2014, one can see that the competition has become greater and greater for H-1B visas year by year, however FY 2024 stands out in particular as the most competitive H-1B season overall.

This chart shows registration and selection numbers for fiscal years 2021-2024 (as of April 24, 2023).

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Specifically, the selection rate this H-1B season was significantly lower than all previous H-1B seasons. According to USCIS, there were fewer registrations selected this season, because of higher demand for Chile/Singapore H-1B visa (cap-exempt), and projections showing a higher rate of filings from employers whose registrations were selected in the cap lottery.

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We have great news for H-1B visa registrants! Today, March 27, 2023, USCIS announced that it has received enough electronic registrations to reach the FY 2024 H-1B visa cap—just 10 days after the H-1B electronic registration period closed on March 17, 2023.

USCIS randomly selected from among registrations that were properly submitted to meet the 65,000/20,000 annual numerical limitations for the regular cap and advanced degree exemption.

Petitioners who have been selected have been notified of their selection via their myUSCIS online accounts.

Notification of Selection

Now that the selection process has been completed, USCIS has sent electronic notices to all registrants with selected registrations that are eligible to file an H-1B cap-subject petition on behalf of the individual named in the notice within the filing period indicated on the notice.

Account holders who submitted the selected registration have been notified of selection via email or text message stating that an action has been taken on their myUSCIS online account. Account holders can log in to see the full notice and determine whether they have been selected.

A registrant’s USCIS online account will show one of the following statuses for each registration:

  • Submitted: The registration has been submitted and is eligible for selection. If the initial selection process has been completed, this registration remains eligible, unless subsequently invalidated, for selection in any subsequent selections for the fiscal year for which it was submitted.
  • Selected: Selected to file an H-1B cap petition.
  • Not Selected: Not selected – not eligible to file an H-1B cap petition based on this registration.
  • Denied: Multiple registrations were submitted by or on behalf of the same registrant for the same beneficiary. If denied as a duplicate registration, all registrations submitted by or on behalf of the same registrant for this beneficiary for the fiscal year are invalid.
  • Invalidated-Failed Payment: A registration was submitted but the payment method was declined, not reconciled, disputed, or otherwise invalid.

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The H-1B registration period is now in full swing. Employers will have the opportunity to complete the electronic registration process from now until noon Eastern Time on March 17, 2023.

The question on everyone’s minds is whether the massive tech layoffs in Silicon Valley will decrease demand for H-1B visa registrations. Tens of thousands of employees at Google, Amazon, and Meta, have been laid off since early January, leaving big tech companies to adapt to their changing circumstances.

However, demand for high-skilled foreign workers remains high. Companies across the United States will compete for a chance to win selection just as in past years. It is expected that demand for the H-1B visa lottery program will grow this year, because the labor market still demands highly skilled workers with skills in the STEM fields.

Once the H-1B registration period has closed on March 17th the United States Citizenship and Immigration Services (USCIS) will complete a random lottery to reach the annual cap of 85,000 H-1B visas.

Since the implementation of the online registration process in 2020, H-1B registration submissions have far exceeded the number of available visas each year. As an example, in FY 2022 employers submitted roughly 308,613 H-1B registrations (selecting 131,970), and by 2023 this figure increased to 483,927 registrations (selecting 127,600).

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